STEPHEN J. ISAACS, 859-252-5757, a Kentucky DUI Attorney with Isaacs Law Office, writes about defenses to Driving Under the Influence / DUI / DWI in Kentucky.

A Missouri police officer stopped a motorist for speeding and crossing the centerline. Suspecting the motorist had been driving under the influence, and after the motorist declined to take a breath test to measure his blood alcohol concentration (BAC), the officer arrested the motorist and transported him to a nearby hospital for blood testing. Althought the motorist refused to consent for the blood test, the officer directed a lab technician to take a sample. The officer never attempted to secure a search warrant. The state argued there would not be enought time to obtain a search warrant because blood alcohol disappates over time. The blood test results indicated that the motorist’s BAC tested well above the legal limit. The officer charged the motorist with driving while intoxicated (DWI).

At the trial court, the motorist moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that motorist’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency.

On appeal, the Missouri State Supreme Court agreed with the trial court, and held that a routine DUI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsentual warrantless test violated the motorist’s right to be free from unreasonable searches of his person. The Missouri State Supreme Court relied on Schmerber v. California in which the U.S. Supreme Court held that a DWI suspect’s warrantless blood test where the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence’.

Missouri again appealed the matter to the U.S. Suppreme court, who, in Missouri v. MCNeely, stated that they agreed with the Missouri State Courts.

It’s not often that I am involved with a Driving Under the Influence story before it becomes the news, but it happened in the case of a Kentucky man arrested for DUI / DWI while riding a horse. I received a telephone call from a reporter asking for background information on how the police could arrest and charge a person riding a horse for DUI in Kentucky. Accordingly, I am sharing the information herein.

It seems that Danny Reynolds of Jessamine County, KY, which is located approximately 16 miles from Lexington, Fayette County, Kentucky, had been drinking celebrating his son’s birthday, and then went horseback riding near his home with friends. At the time of his arrest, police reported that Mr. Reynolds allegedly had several beers, marijuana, and moonshine in his possession. Police reported Mr. Reynolds blood-alcohol level as double the legal limit.

Police arrested Mr. Reynolds for violating KRS 189.520 titled "Operating vehicle not a motor vehicle while under influence of intoxicants or substance which may impair driving ability".

Essentially, KRS 189.520 states that "No person under the influence of intoxicating beverages or any substance which may impair one's driving ability shall operate a vehicle that is not a motor vehicle anywhere in this state." KRS 189.520 further states that "(a) If there was an alcohol concentration of less than 0.05, it shall be presumed that the defendant was not under the influence of alcohol; (b) If there was an alcohol concentration of 0.05 or greater but less than 0.08, such fact shall not constitute a presumption that the defendant either was or was not under the influence of alcohol, but such fact may be considered, together with other competent evidence, in determining the guilt or innocence of the defendant; and ( c) If there was an alcohol concentration of 0.08 or more, it shall be presumed that the defendant was under the influence of alcohol. Violating KRS 189.520 is a violation and not a misdemeanor. According to KRS 189.990, violating KRS 189.520 will result in a fine of $20 to $100 dollars for each offense.

So what constitutes a non-motorized vehicle? Typically the list may include, but is not limited to: bicycles, horses, mules, horse drawn carts, skateboards, pedal powered surrey’s, canoes, boats propelled by paddles, electric toy cars, balloons, and more. Based on the county, it may also include non-registered mopeds under 50 cc.

Interestingly, KRS 189.520(2) makes it illegal for a law enforcement officer to not enforce charging a person with operating a non-motorized vehicle while under the influence. According to KRS 189.990, any peace officer who violates KRS 189.520(2) will be fined not less than $35 nor more than $100.

In reading recent DUI articles for this website, I stumbled across an article from the Augusta Chronicle where a Richmond County Georgia deputy sheriff was forced to resign after admitting to falsifying readings from a portable breath testing device. According to the article, the deputy had 62 pending DUI cases which are now in jeopardy. The article further stated that there may have been people charged with driving under the influence who should not have been charged with the DUI.

Sadly, the falsification of DUI evidence by officers is not new and is definitely not limited to Georgia. I recall successfully defending a DUI case in Rowan County, Kentucky, where the prosecutor and I discovered that the arresting officer had been charging drivers with DUI without supporting evidence. In my client's case, the officer claimed my client was driving under the influence of alcohol. Fortunately, a blood test proved my client's innocence once we received the report indicated he had no alcohol present in his body. The Court dismissed my client's case and the officer was subsequently fired.

Unfortunately, it has been my observation that not all innocent individuals inappropriately charged with a DUI are lucky enough to uncover evidence to prove their innocence. I have observed a disturbing trend in Kentucky where law enforcement agencies which used to have their officers make video recordings of the stop, the Standard Field Sobriety Tests, the arrests, and the suspect's performance on the Intoxilyzer no longer have their officers make these recordings. Without these recordings, it is a bit more difficult to show the court that the officer erred in collecting evidence against the accused.

So what do defense lawyers do when exculpatory evidence is not readily available? We turn to the Confrontation Clause of the Sixth Amendment to the United States Constituion. The Confrontation Clause provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." This usually applies to testimonial evidence, but may also apply to pretrial conferences in order to expedite the case. Of importance, the Fourteenth Amendment makes the right to confrontation applicable to the state criminal prosecutions. It does not apply to civil cases or other proceedings.

Gainesville Florida police arrested the former MADD president of the Gainesville, Florida chapter of Mothers Against Drunk Driving for DUI, according to KTLA News. Apparently, Debra Oberlin, 48, blew a 0.234 and a 0.239 on the breathalyzer tests. When asked, Oberlin reported that she had four beers.

Intoxiated people sometimes say the funniest things. According to Fox 8 News, police in Lorain, Ohio arrested a man for DUI after trying to 'mow the sidewalk'.

Apparently, when police arrived at the scene where Steve Urbansky had driven his car into a snow bank, he stated that he was, "just trying to mow the sidewalk." (February 14, 2011). The arresting officer stated that he witnessed Urbansky operating the vehicle and spinning the car’s rear wheels.

Of note, the police found an opened can of beer in the glove box. The article did not elaborate on whether the opened can of beer was empty.

Essex, England - In an unusual DUI, the Telegraph reports that a man received a DUI and a three year driving ban for operating a child’s Barbie electric toy car.

Paul Hutton, 40, received the three-year driving ban as an enhancement to the DUI conviction because he had previously received a DUI conviction within the past ten years. Mr. Hutton admitted to operating the toy car while drunk. Hutton further stated: "I was very surprised to get done for drink-driving but I was a twit to say the least."

The electric Barbie toy car, which reportedly has a top speed of 4 miles per hour and which was designed for 3 to 5 year old children, can be easily overtaken by a walking pedestrian. Mr. Hutton had been working with his son on the car as part of his son’s mechanics class project, and could not resist the urge of taking the toy car out for a test drive.

September 15, 2009 - The Department of Justice announced it has charged Donald Stoner, of Lancaster County, Pennsylvania, with conspiracy to commit identity fraud in a scheme wherein he targeted DUI offenders in Lancaster and York Counties.

According to the press release by Dennis C. Pfannenschmidt, United States Attorney for the Middle District of Pennsylvania, Stoner would target DUI offenders who hired private attorneys, reasoning that they would have money to steal in contrast to those DUI offenders who used public defenders. Stoner obtained the names of the DUI offenders using the internet, and would then obtain the DUI offender’s personal information directly from the court files in the clerk’s office using an accomplice. From the court files, Stoner and his accomplice obtained the DUI offender’s social security number, drivers license number and other identifying information disclosed in the court documents. Stoner and his accomplice thereafter opened fraudulent bank accounts, created phony email addresses, and applied for loans in the victim’s name.

As a result of this type of identify theft scheme, the clerk of court for York and Lancaster County were asked to redact identifying information from court documents prior to release to the public.

Stoner agreed to plead guilty to the charge. He faces up to five years’ imprisonment and $250,000 in fines upon conviction of the offense.

On August 27, 2009 at 2:24 a.m., Lawrenceburg Kentucky police stopped a vehicle driven by the former University of Kentucky basketball coach Billy C. Gillispie and charged him with DUI, first offense.

According to police records, the Lawrencebug Police Department (LPD) received a report of a possible intoxicated driver driving a white four door car with Texas plates heading northbound on U.S. 127 near the bypass near the Bluegrass parkway. The LPD dispatcher sent officers to intercept the vehicle.

Upon observing a white Mercedes vehicle on the opposite side of the highway meeting the subject vehicle description, Officer Corley reported that he clocked the vehicle on radar at 63 mph in a 45 mph speed zone. Officer Corley turned around to pursue the vehicle and reported that he observed the white 2009 Mercedes C300 with Texas plates swerving across the fog and center lines, and alternating speed between 50 to 55 mph. After conducting a traffic stop, Officer Corley reported that the driver, Billy C. Gillispie, had a strong fruity smell coming from his person, had red glassy eyes, and slow slurred speech. Officer Corley reported that Mr. Billy C. Gillispie declined to take the field sobriety tests and portable breath test. Mr. Gillispie was thereafter arrested for DUI and transported to the Lawrenceburg Kentucky detention center. The records also indicate that Mr. Gillispie also refused tests of his breath and blood at the detention center.

Gillispie was arraigned later the same day. He entered a not guilty plea and was released on personal recognizance.

Billy C. Gillispie is known as the former coach of the University of Kentucky basketball team for the prior two basketball seasons. He is reportedly in town for negotiations to settle a lawsuit he brought against the University of Kentucky for breach of contract due to his dismissal by the University of Kentucky after two years into a seven year contract. The University of Kentucky alleges that no formal contract existed.

In this challeging economy, a Lexington Kentucky attorney has a solution for Kentucky's budget crisis: legalize and tax marijuana.

In a prepared statement, Attorney Gatewood Gailbraith, former political candidate for governor of Kentucky, states that Kentucky is looking for new sources of taxation and seems bent on adding a "sales tax" on services including our legal fees. However, he points out that "there is a much larger source of revenues lying untapped which will keep them out of our pockets and solve our budget problems for years to come." Galbraith's solution, tax marijuana.

In a letter to Kentucky Governor Steve Beshear, Galbraith argues that Kentucky should take advantage of this opportunity by studing ways to tax and regulate cannabis (marijuana and hemp) so as to help Kentuckians.

As an example, Galbraith calculates "that getting 30 joints per ounce, the Kentucky public consumes 114,000 ounces of marijuana per day. At a $100 per ounce tax, that would yield the Commonwealth an additional $511 MILLION in new taxes the first year. If we were the first [state] east of the Mississippi River to pass these laws, the income would be astronomical, dwarfing the gambling/casino commerce to Kentucky." Gatewood prepared a chart entitled "Are You Tough Enough for The Truth", wherein he states that "in 07, Kenucky was ranked 2nd in total domestic marijuana production wih most of this production going out of state". According to Gatewood's calculations, Kentucky could realize new annual income of at least $1,7893,283,200.00.

Note: The views contained herein by attoney Gatewood Galbraith regarding legalizing marijuana are the views and opinions of Gatewood Gailbraith and are not the views of the author. Documents received from attorney Gailbraith are used with permission of Gatewood Galibraith. It is illegal to use and / or possess and / or sell marijuana in the Commonwealth (State) of Kentucky.

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